Preventing Literature from “Disappearing Up Its Own A-Hole”: Quotations, Fan Fiction, and Copyright Law

Last fall, when the William Faulkner Estate sued Sony Pictures, the Washington Post, and Northrop Grumman for their uses of short Faulkner quotes and paraphrases, I summed up my thoughts on the outrageous litigation by quoting Kurt Vonnegut: “Literature should not disappear up its own asshole, so to speak.”*

As I said in my first post on the subject, When Someone Quotes You, Say “Thank You,” Not “F-You,” Vonnegut uttered those memorable words in a different context, but the sentiment is equally applicable to the short-sighted actions of authors and their estates aimed at limiting others from using their copyrighted material in a creative manner. In particular, I explained that “[The Faulkner Estate’s] litigious nature could chill future references to the author, thus ending the free advertising [that comes with quotations] and possibly hastening the speed with which the public will lose interest in his work.”

For those who don’t know, fan fiction includes stories written by fans of an original work that use characters, plot devices, and sometimes the setting from the original work in a new way. Such derivative works often amount to copyright infringement unless the fan fiction writer is able to establish a defense, such as by arguing that the original author has given his or her implied consent (by, for example, allowing fan fiction to go unchecked long after learning about it) or by arguing that the fan fiction is Fair Use. A fan fiction author is more likely to succeed under Fair Use if, when assessing the purpose and character of the use, the derivative work is educational, a parody, and/or, perhaps most importantly, non-commercial. So, historically, a fan fiction author’s ability to make money off of his or her derivative creations has been limited — as soon as they try to commercialize the work, they can expect a ‘cease and desist’ letter from the owner of the original work’s copyright.

Amazon’s Kindle Worlds, however, legalizes fan fiction by obtaining licenses from the holders of copyrights to allow fan fiction writers to publish derivative works while getting paid for it. Fan fiction has always existed in some form, but perhaps the allure of receiving royalties will encourage more writers to create derivative works, and perhaps even encourage publishers to assist writers by providing editing or marketing. So far, Kindle Worlds has obtained licenses from a small number of copyright holders, and now the list includes Kurt Vonnegut’s estate.

So, unlike Faulkner’s estate, Vonnegut’s estate has decided to use copyright law to its advantage in a way that doesn’t ruin Fair Use for the rest of us. This move opens up my favorite novel, Slaughterhouse-Five, to the creative minds of fan fiction writers, and while I’m not inclined to participate as a writer in Kindle Worlds, I look forward to seeing what others create.

In the past, I’ve wondered whether certain examples of derivative works are homages to the original work or merely rip-offs, and I’ve heard others claim that fan fiction “dilutes” the original work, but I think none of these criticisms outweigh the potential benefits of derivative works to the original author or his/her estate. For example, when I read Margot Livesey’s shallow reiteration of Charlotte Brontë’s Jane Eyre (which is no longer under copyright and so presents none of the legal challenges of typical fan fiction), it only made me long to read the original again, not think less of it. Overall, references through quotes, paraphrases, and even through fan fiction keep old books alive, something Faulkner’s estate doesn’t understand.

Faulkner has been dead for more than fifty years and Vonnegut hasn’t been with us for six, making it impossible for these authors to engage with readers the way modern authors do today. They can’t tweet, they can’t blog, and they certainly can’t make personal appearances on The Daily Show or Colbert Report or at anyone’s local bookshop (except through posthumous accounts and impersonators). So, to remain relevant by connecting with a new generation of readers, these deceased authors need new authors to reference them, and participation in Kindle Worlds may be one way to achieve this type of recognition while still protecting their copyright.

The minute Kurt Vonnegut’s books lose their place in literature is the moment I will feel like an old woman and, dare I say it, I may well find myself starting a diatribe with, ‘Kids these days…’ Let’s hope it never comes to that.

And maybe now it won’t. Maybe my Dad’s next class of students will learn about Kurt Vonnegutafter stumbling upon derivatives like Dog’s Cradle and Zombie Slaughterhouse. We’ll see.

First, let me say I’ve missed getting notified of posts to your blog. Somehow, I must have fallen off the notification list, or WordPress has been up to shenanigans.

Second, I used to write fanfic. The thought of being able to make money from it is both pleasing and dismaying. After all, I didn’t create the characters or the worlds they live in, so it seems strange to see some fanfic now being offered for sale. But who doesn’t want to make money doing something they love?

As you can see, I’m torn. At this time, I’ve made no decision about it either way. Guess I’m waiting to see what happens.

I’ve had trouble lately keeping track of the blogs I follow, too. For me, part of the problem has been gmail’s new folders. The blogs I follow by email end up under the “social” tab, which I don’t check as often. I need to change my default settings.

Yes, fan fiction falls into a gray area in terms of legality and propriety. It feels wrong for an author to make money (or even build a reputation) off of another author’s work, but then again, the creative process depends on a certain amount of borrowing. So, what fan fiction writers are doing isn’t that much different from what Shakespeare was up to. The only difference is that we have copyright laws now. Sometimes, though, an author stands to make more money if he lets others spread the word about his works through ample quotations and even fan fiction.

I hope you’re having a nice summer! I’ve been enjoying the pictures you’ve posted.

I’m having a terrific summer, though I already know it’s going to be too short. It didn’t really get going until well into June.

Although some fanfiction is outstanding, both in story, characterization, and editing, much of it is, let us say, not up to snuff. We already have to deal with some of that in the self-publishing world. Authors have to start taking themselves more seriously or readers never will.

It’s like that famous expression: “Imitation is the highest form of flattery.” I can only hope someday people want to write fan fiction based on my worlds/characters/stories etc. That means those things felt real enough to them that they want to keep the story going, and keep those characters alive. I’ve never tried writing fan fiction myself, but I think it’s usually a compliment to the author and it will be interesting to see what people come up with on Kindle Worlds.

I agree! It’s a big compliment! I can understand why an author would be annoyed if someone else made money off of their characters or setting, but it really helps cement an author’s legacy. Plus, those authors who take a vicious approach to fair use risk ruining their reputations. As a reader, I like to support authors who seem like good people.

I’m not so keen on fan fiction though I agree it can be a good contribution and actually I’m not against it (I too was shocked at your husband’s students not knowing Vonnegut!) . However, there are some that make me want to…just ignore fan fictions. When a friend of mine recommeded I read Elizabeth Aston’s “Mr. Darcy’s Daughters” , well I thought ‘why not?’ and though I cannot say I hated the book, I thought it just had TOO much Pride & Prejudice in it, by the Darcys having 5 daughters, the second one being the main character of the book and the incredible resemblances the Darcy girls had with Austen’s Bennets. For me it was not original at all. Of course fan fictions will not be entirely original but I’d like them more if they were a bit more unpredictable. Maybe it has to do with the kind of fan fictions I’ve read or maybe I don’t understand well how they work.

Yeah, I’ve read some terrible derivative works of Pride & Prejudice (such as Susan Fales-Hill’s Imperfect Bliss), but there is certainly the potential for good literature to develop from a Pride & Prejudice base (and there probably are good examples that I haven’t read). With classics, which are no longer under copyright, it’s easier for modern authors to just rip off the earlier work without adding much value. My hope is that the Kindle Worlds model, which encourages good fan fiction by offering royalties, will have some good results. Thanks for the comment!

Good thing the Faulkner estate lost or they may have outsmarted themselves, as you say. If people stop quoting Faulkner, then Faulkner is more likely to fall out of our cultural mind. And then who will pay the estate for other sorts of privileges?

Yeah, part of me thinks that the Faulkner estate got exactly what it wanted out of the lawsuit: more publicity. They might think that even bad publicity is worth it. I certainly have spent more of my time talking about Faulkner than I had ever expected to, but I refuse to purchase any of his books at this point.

I hadn’t realized that Vonnegut’s works had been added to Kindle Worlds. I’m a big fan of fanfiction—I think it’s fun to read and write. There’s a lot of grey area surrounding it, and it’s interesting to see your perspective!

Yeah, fan fiction is a very interesting topic from a legal perspective. I haven’t written any of it, but I find the idea appealing for a number of reasons, even though I’ve read a few mediocre examples (Margot Livesey and Susan Fales-Hill). In particular, I am annoyed by the “rip offs” of earlier works, usually ones that are no longer under copyright, that make me feel like a new author is getting royalties (and my money) for the original author’s ideas. That usually isn’t an issue for typical fan fiction because it’s often free, and even under the Kindle Worlds model, both the fan fiction author and the original author would be getting royalties.

I’d wondered whether fan fiction was legal. For all the flack Amazon’s been getting lately, much of it deserved, it sounds like its fan fiction project is probably worthwhile. I wonder if they’re trying to get a license from Rowling (not that she needs the publicity you write about).

Yeah, Rowling doesn’t exactly need the publicity! There is a ton of Harry Potter fan fiction, and I thought Rowling generally allows it, but who knows how she would feel if it were commercial. I don’t really know enough about Kindle Worlds to have a strong opinion about it, but I generally like the idea of finding a way to make fan fiction legal by paying both the original authors and the fan fiction authors. They both contribute something of value, in my opinion.

I like your point about fan fic and quotation keeping the book alive. I wonder if that’s how we know about most of the authors in the academic canon: If Faulkner and Hemingway are more famous than some of their contemporaries because they inspired some reaction — positive, negative, or otherwise — in their readers, whereas other writers’ work did not.

Yeah, the books that are worth quoting are the ones that are worth reading. These are the books that become part of our culture. There’s a huge element of luck and marketing, too. I think both Faulkner and Hemingway (or their heirs) have known how to market these guys, from the now defunct Faux-Faulkner contest to Hemingway’s polydactyl cats. The Nobel prize doesn’t hurt either!

Very thought out post. The fan fiction work seems to be taken too seriously, like it is put to higher standards, when if fact it is not. The writers knowingly use the plot and change it up. It happens in art too, and the artists do sell their work. If compared to visual art, I guess the writers think, “What is the harm because it is different.”

Thanks! I think some fan fiction authors aren’t serious about it, while others are and might even improve upon the original. You’re right that borrowing from previous works is a typical part of the creative process, and as long as the new work is different enough from whatever preceded it, it’s probably fine to sell it.